Anastasia E. Lennon v. Rochester, Town of - Police Department (SPR 20220814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2022 SPR22/0814 Chief Robert Small Chief of Police Rochester Police Department 29 Dexter Lane, P.O. Box 9 Rochester, MA 02770 Dear Chief Small: I have received the petition of Anastasia Lennon appealing the response of the Rochester Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2022, Ms. Lennon requested, “any and all emails and email threads, including their attachments, to and/or from Rochester Police Department personnel, and any documents regarding [a named individual] that include any of [a list of certain keywords].” The Department provided a fee estimate on April 6, 2022. Unsatisfied with the Department’s fee estimate, Ms. Lennon petitioned this Division and this appeal, SPR22/0814, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Chief Robert Small SPR22/0814 Page 2 April 12, 2022 Fee Estimates A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first (two) 2 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s April 6th Fee Estimate In its April 6, 2022 fee estimate, the Department stated, “please be advised that the cost for an IT Technician to perform remote infrastructure support is $950.00. Please advise how you wish to proceed with this request.” Current Appeal That same day, Ms. Lennon stated to the Department, “typically…the agencies provide greater detail how they arrived at the fee they are requiring to fulfill the request…I’m requesting further detail on how [the Department] arrived at $950 and more detail on what ‘remote infrastructure support’ means.” That same day, the Department forwarded a receipt from a certain I.T. consultant for $950.00. I find the Department’s fee estimate unclear. First, it is unclear for which tasks the Department is charging Ms. Lennon. Second, it is unclear why the Department is charging $200.00 per hour for tasks involving the production of public records. Please be advised, the Department may only charge for segregation and redaction required by law and assess fees for the production of public records at a rate of $25.00 per hour unless it petitions the Supervisor of Public Records within ten days of receiving the initial request for public records. See G. L. c. 66,

Chief Robert Small SPR22/0814 Page 3 April 12, 2022 § 10(d)(iii); G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable); 950 C.M.R. 32.06(4)(g). The Department must clarify these issues. The Department is advised that a custodian cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Conclusion Accordingly, the Department is ordered to provide Ms. Lennon with a response to her request in a manner consistent with the Public Records Law and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Lennon may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Further, this office encourages the Department and Ms. Lennon to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a municipality or agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality or agency to produce records sought more efficiently and affordably). Sincerely, Rebecca S. Murray Supervisor of Records cc: Anastasia Lennon